Moody v. NetChoice, LLC Revisions: 7/11/24
The Supreme Court threw out lower court rulings on Florida and Texas laws restricting social media companies' ability to remove or suppress user posts, finding that neither court had done the analysis required to decide whether the laws were unconstitutional across the board.
The decision leaves both states' laws in legal limbo and sends the cases back to the lower courts, but the Court made clear that platforms' editorial choices about what content appears on their main feeds are a form of protected speech — and that governments cannot force platforms to carry views they find objectionable simply to achieve a more 'balanced' online marketplace of ideas.
How it got here: District courts in both states blocked the laws; the Eleventh Circuit upheld the Florida injunction while the Fifth Circuit reversed the Texas injunction, creating a split that the Supreme Court agreed to resolve.
The Case in Depth
What happened
In 2021, Florida and Texas each passed laws restricting large social media platforms — companies like Facebook and YouTube — from removing, labeling, or downranking users' posts based on viewpoint. The laws also required platforms to give users individualized explanations when their posts were removed. Trade groups representing major tech companies challenged both laws as violations of the First Amendment, arguing that deciding what content to feature or suppress is a form of protected speech that states cannot override.
The question before the Court
Did Florida and Texas violate the First Amendment by passing laws that prevent large social media platforms from deciding which user posts to remove, restrict, or label?
The Court's answer
The Court did not decide whether the laws are unconstitutional — it sent both cases back to the lower courts for a proper legal analysis. The Court ruled that neither appeals court had examined the full range of platforms and services the laws cover, or compared the constitutional applications against the unconstitutional ones. A facial challenge — an attack on a law across all its applications — requires that complete accounting, and without it neither court could properly rule the laws invalid across the board.
The Court did provide important guidance, especially correcting the Fifth Circuit: when social media platforms decide which posts to feature, remove, or label on their main feeds, those are constitutionally protected editorial decisions — similar to a newspaper's choice of which columns to print. A state cannot override those choices simply to impose its preferred balance of viewpoints online, and Texas's stated goal of correcting what its officials saw as anti-conservative platform bias is precisely what the First Amendment forbids.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Social media companies received a clear signal that their content-moderation choices — deciding what posts to remove, label, or promote — likely receive First Amendment protection. States that want to require platforms to carry speech the platforms would rather suppress face a high legal bar. The ultimate fate of the Florida and Texas laws remains undecided and will be worked out in further proceedings.
What changes now
Both cases go back to the Eleventh Circuit (Florida) and Fifth Circuit (Texas) for new proceedings. Each court must identify every platform and service covered by its state's law, determine which applications violate the First Amendment and which do not, and compare the two sets to decide if the laws are invalid on their face. The Court's guidance strongly suggests that the laws' restrictions on main social-media feeds likely face serious First Amendment obstacles.
What this does not decide
The Court does not decide whether either Florida's or Texas's law is ultimately unconstitutional. The First Amendment guidance applies only to platforms' main content feeds, not to direct messaging, email, e-commerce reviews, ride-sharing, or other services the laws may also cover. Whether those other applications raise the same constitutional concerns remains entirely open.
Concurrences and dissents
Concurrence — Justice Barrett
Justice Barrett joined the majority fully but wrote separately to caution that facial challenges to these laws may be unmanageable in practice. She raised unresolved questions about whether algorithm-driven and AI-based content moderation is as constitutionally expressive as human editorial judgment, and suggested that as-applied challenges to specific platforms and functions would allow courts to answer these fact-intensive questions more reliably.
Concurrence in part — Justice Jackson
Justice Jackson joined the majority's procedural analysis and general First Amendment framework but declined to join the parts providing guidance on Texas's law as applied to Facebook and YouTube. She argued the Court should avoid deciding more than necessary on such an underdeveloped record, and that careful factual development about exactly how specific platforms function is required before courts can properly assess any First Amendment claim.
Concurrence — Justice Thomas
Justice Thomas agreed the cases should be vacated and remanded but wrote separately to raise a more fundamental objection: facial challenges are incompatible with Article III's case-or-controversy requirement, which permits federal courts to rule on a statute's constitutionality only as applied to the parties before them. He urged the Court to reconsider and ultimately abolish the facial challenge doctrine, and separately suggested the common-carrier doctrine should guide the lower courts on remand.
Concurrence — Justice Alito
Justice Alito, joined by Justices Thomas and Gorsuch, agreed only that NetChoice had not proved facial unconstitutionality, calling everything else in the majority opinion nonbinding dicta. He argued the record was too thin to decide whether social media platforms' algorithmic, AI-driven content moderation is constitutionally expressive in the same sense as a human newspaper editor's choices, and criticized the majority for brushing aside the States' common-carrier arguments without serious engagement.
How the Court got there
The legal reasoning, step by step
- To win a facial First Amendment challenge, a challenger must show that a law's unconstitutional applications substantially outweigh its constitutional ones — a demanding standard even under the First Amendment. That requires a court to first map out every activity the law covers, then decide which applications are constitutionally permissible and which are not, and finally weigh the two sets against each other. Neither court below performed that analysis.
- The Fifth Circuit made a fundamental legal error by concluding that social media platforms' content-moderation choices are 'not speech' at all, placing them outside the First Amendment's reach. Under the Court's editorial-discretion line of cases — covering newspapers (Tornillo), utility newsletters (PG&E), cable television lineups (Turner), and parades (Hurley) — compiling and curating others' speech into a distinctive expressive product is itself a First Amendment-protected activity.
- Facebook's News Feed and YouTube's homepage illustrate the point: both platforms use community standards and algorithms to remove hate speech, suppress misinformation, and demote disfavored content — actively shaping what users see. Those choices reflect the platforms' own editorial judgments about which viewpoints are appropriate. And a compiler's right to exclude unwanted speech is not forfeited merely because it accepts most posts alongside the few it rejects.
- Even under the less demanding form of First Amendment scrutiny, Texas's law fails. A law must serve a substantial interest unrelated to suppressing speech. Texas's stated interest — correcting what its officials saw as platforms' anti-conservative bias — is entirely about tilting the balance of private speech, which the First Amendment forbids the government from doing. The government cannot force a private speaker to carry views it rejects simply to produce a more 'balanced' speech environment.
- Because both lower courts focused only on Facebook's News Feed and YouTube's homepage rather than examining the laws' full scope — which may reach email services, e-commerce platforms, ride-sharing apps, payment services, and other functions covered by the broad statutory definitions — their facial analysis was incomplete. The cases return to the lower courts to map the full range of applications and weigh constitutional against unconstitutional ones.
Doctrinal impact
Cases affected by this decision
Reaffirms Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (515 U.S. 557)
The Court applies Hurley's rule that compiling others' speech into an expressive product receives First Amendment protection, extending it to social media feeds.
Reaffirms Miami Herald Publishing Co. v. Tornillo (418 U.S. 241)
The Court reaffirms that editorial control over what content to include or exclude is protected speech, now applied to social media platforms.
Distinguishes Turner Broadcasting System, Inc. v. FCC (512 U.S. 622)
Turner upheld must-carry rules to save local broadcasting — an interest unrelated to balancing viewpoints — making it inapplicable to Texas's viewpoint-rebalancing goal.